Attorney: Hand Over The Name CaseRails And Nobody Gets Hurt!

We here at Abnormal Use have a question for you. Any chance that you would come across a company named CaseRails and inadvertently think you had found a company named CaseWebs or CaseSpace? Neither did we. However, one misguided lawyer who owns trademarks for the latter entities thinks you might. He recently sent a cease and desist letter to CaseRails demanding that they fork over their company name and Internet domain name.

CaseRails is a small startup that offers a document management system designed to automate the process for drafting, storing, and reusing legal documents.  Sanford Asman, a trademark lawyer, claims that the name CaseRails infringes on his trademarks for the terms “CaseWebs” and “CaseSpace.” CaseWebs is purportedly a litigation support software owned by Asman.  It’s not clear that the name CaseSpace is being actively used Asman.

Apparently, Asman believes he’s got a corner on the market for any legal software names starting with the generic word “case.” His cease and desist letter can be read here. In the letter, he claims: “I take very seriously any third party attempts to use ‘Case’ formative marks in connection with web-based legal applications.” Maybe he should give LegalZoom a call and offer to help them pursue all those companies using names starting with generic word “legal.”

Luckily for the guys at CaseRails, Asman is generously willing to work out a resolution if they’d be so kind as to hand over the rights to the name CaseRails and the domain name We can understand that the guys at CaseRails might not want to spend valuable resources in a battle over their name. However, that is almost certainly what Asman is banking on.  We hope they do fight the matter as this thing is just down right silly.

JC Penney “Phantom” Pricing Lawsuit

Get this: There is definitely a real class action lawsuit against JC Penney in federal court in California over purported “phantom discounts.”

The lawsuit accuses JC Penney of hiking retail prices on apparel and accessories to trick shoppers into believing they were receiving sizable discounts when the items were advertised as being on sale.  The long and short of it is that the when retailer would run a sale, they would allegedly markup the price of the item and then “discount” it back down to the same price it had been at for months. For example, the complaint alleges that for a sale they’d mark up a shirt that had been selling for $17.99 to $30 and then they’d sell it for 40 percent off . . . or $17.99. The class action lawsuit has been certified by the federal judge presiding over the case.

To be fair, JC Penney apparently tried to move to everyday low pricing in 2012.  Ironically,  executives billed the new pricing model as the end of “fake pricing.” Apparently the customers really wanted fake pricing because the everyday low pricing was a miserable failure and they quickly went back to a more traditional discounting model.  It does make you wonder, however, if any of these claims of phantom discounting claims occurred during the period that the retailer was switching between business models.

The Federal Trade Commission does actually have regulations governing this sort of thing.  16 C.F.R. 233.1 requires retailers to sell items at original prices for a “reasonable length of time” before discounting them.  Sort of makes you wonder how Jos. A. Bank continues its thing, but that’s a story for another day.

Environmental Groups Sue to STOP Solar Panel Farm at NJ Amusement Park

Six Flags Great Adventure, a New Jersey amusement park, wants to create a huge solar farm that will generate enough electricity to make the park energy independent.  A big business that is trying to operate on an entirely renewable energy source – that sounds like something environmentalist would be applauding, right?  Not so fast.  Several environmental groups recently filed a lawsuit to stop the project because it calls for the removal of trees on the site.

The lawsuit filed against the amusement park and the solar energy company, KDC Solar, is seeking an injunction to halt the project, which they claim will result in the clearing of 90 acres of environmentally sensitive forest land.  They argue that the solar farm project violates local ordinances for tree removal.  They further claim that the local planning board failed to follow required procedures for approving the project, including not studying alternatives to deforestation.

However, the environmental groups don’t want the project halted altogether.  They want Great Adventure to build the solar farm above its parking lot. Although Great Adventure has not commented on the lawsuit, it has previously issued public statements regarding the proposal to build the solar farm above its parking lot.  It apparently ruled out the idea because of concerns over customer safety and decreased parking area.  Increased costs of 20 to 50 percent also may have been a factor in the decision.

It should be interesting to see where this goes.  It will likely come down to whether the planning board took the right procedural actions and, if not, whether they want to cure the procedural deficiencies in order to allow the project to move forward.

Can’t Buy Me Love? Amazon Sues to Block Purchased 5 Star Reviews

As we reported on Monday, is apparently none too happy with a person or persons that runs handful of websites with names like “” that offer to give glowing reviews of sellers’  products on Amazon for a price.  We have a few more thoughts on this matter. On April 8th, Amazon filed a lawsuit against the websites’ owner or owners  in Washington state court. Amazon calls the of buying and selling of reviews an “unhealthy ecosystem” that is damaging its brand.

The complaint filed in King County Superior Court names an individual named Jay Gentile as the operator of  Amazon also asserted claims against a John Doe defendant since it does not know who is operating, and Amazon wants the court to shut the websites down for trademark infringement, unfair competition and violation of the Consumer Protection Act.  The complaint also seeks an injunction to stoping  the selling fake reviews and an order requiring the sites to identify each Amazon review created in exchange for payment.

Amazon expressly prohibits paid reviews and threatens to suspend sellers that buy fake reviews. According to the complaint:

[the] Defendants are misleading Amazon’s customers and tarnishing Amazon’s brand for their own profit and the profit of a handful of dishonest sellers and manufacturers…Amazon is bringing this action to protect its customers from this misconduct, by stopping Defendants and disrupting the marketplace in which they participate.”

Although there’s no way of knowing which products have reviews that may have been purchased form one of these website.  However, this review seems to be a very likely candidate as it appears to have been written by J. Peterman.

Is Bell’s Brewery Bullying A Smaller Brewery Or Just Protecting Its Brand?

The craft beer community is a passionate one. Bell’s Brewery makes fantastic beer, and as you probably know, it is a popular name in the craft brew world. However, Bell’s has been garnering negative press lately for its perceived bullying of a smaller Asheville, North Carolina area brewery in a trademark dispute.

Since we here at Abnormal Use maintain offices in both of the Carolinas, we felt compelled to comment upon this matter.

At issue is a brewery named Innovation Brewing. So, where’s the dispute? The names Innovation Brewing and Bell’s Brewery are so dissimilar that no one could possibly confuse the two, right? Well, not according to Bell’s, which believes there is a risk of confusion between the companies in light of an unregistered slogan that Bell’s has used in some marketing materials: “Bottling innovation since 1985.”

Okay. Seriously, how drunk would a customer have to be before trying to buy a Bell’s IPA and accidently ordering an Innovation Brewing IPA?  “Out of this world” drunk, according to the co-founders of Innovation Brewing.  In a statement issued on Facebook, the co-founders stated: “We do not believe that any human on Earth would confuse Innovation Brewing with Bell’s Brewery, despite their slogans.”

As for that backlash from the passionate craft beer community? At least one bar in Asheville, North Carolina stopped serving Bell’s shortly after news of the legal dispute became public.  There’s also a petition started by craft beer enthusiasts called the “Secret Beer Group” asking Bell’s to drop the matter. The petition has over 5,000 supporters.  And just for good measure, there’s some gem posts on the message boards with comments such as: “I’m calling bully and [BS] on Bell’s. No one in their right mind would ever confuse this.” We’ll be keeping our eyes on this one . . . .

More On The Arsenic-Wine Lawsuit

As we discussed on Monday, customers may be getting more than a cheap buzz from their inexpensive bottles of wine.  A class action lawsuit filed in California alleges that dozens of low-end California wines have dangerously high levels of arsenic in them.  Arsenic is a carcinogen that, in high doses, can lead to serious health problems.  The defendants include Sutter Homes and Trader Joes’s.

So what exactly are the plaintiff’s alleging in this case?  The complaint alleges that “just a glass or two of these arsenic contaminated wines a day over time could result in dangerous toxicity to the consumer.” Yet the plaintiffs do not assert any causes of action or allegations that anyone has suffered any actual injury from the drinking these “contaminated” wines.  Rather, the complaint asserts causes of action for violations California’s consumer protection laws, including unfair business practices, misleading and deceptive advertising, and the consumer legal remedies act. The suit seeks injunctive relief, civil penalties, disgorgement and damages, and certification of a class of California consumers who purchased the named wines since 2011.

A spokes person for the wine industry has issued a statement in response to the lawsuit and believes that the suit is meritless.  Wine Institute vice president Nancy Light told Wine Spectator, “[t]here are no [EPA] limits [on Arsenic] for other foods and beverages—including wine—because they’re not consumed at the same level as water and not deemed to be a risk. There is no research that shows that the amount of arsenic in wine poses any health risks to consumers.”

So is your cheap wine going to kill you? Seems unlikely. Do the Plaintiff’s have case related to misleading advertising and other unfair business practice? Maybe. A complete list of the wines at issue in this case can be found here

Trolls Gonna Troll? Win A $533 Million Patent Suit . . . Rinse Repeat.

Smartflash is what some in the tech industry might call a patent troll. It licenses patents but doesn’t actually create products.  Last month, Smartflash obtained a $533 million dollar verdict in a patent case against computer giant Apple.  Now, the company has filed another suit against Apple over the same disputed patents that were at issue in the first case.

In the original lawsuit, Smartflash accused Apple of infringing upon a number of patents relating to the access and storage of data, digital rights management (DRM), and payment systems.  The company claimed that these patents were used in a number of devices, including the iPhone and iPad. As noted above, in February, a Texas jury award Smartflash a $533 million verdict against Apple for that alleged infringement.

Apparently, Smartflash is not satisfied with $533 million verdict.  The day after that obtaining verdict, it filed another suit against Apple over these same patents.  They claim that the iPhone 6 and several other Apple products that infringe on their patents were not covered by the first lawsuit because they came to market after the first suit was too far along.  Now they want to be further compensated.

While these cases are interesting, it may all be for naught. As Bloomberg has reported, Apple has already been successful in getting similar verdicts from this particular district overturned. We’ll see what happens.

$500,000 Judgment In Barking Dog Suit Is Not What It Seems

Family could lose house over $500,000 barking dog lawsuit.”  That’s certainly an attention grabbing headline. A $500,000 judgment over a barking dog? What jury went off the rails with this one?  Actually, no jury at all.  A Seattle man obtained a $500,000 default judgment against his neighbor after she failed to answer the complaint that he filed against her in state court.

The lawsuit itself really is about about a barking dog. In his 36 page complaint, the plaintiff alleged that the defendant’s dog was responsible for “raucously, wildly bellowing, howling and explosively barking.” He claims that the dog barked so loudly that it could be measured at 128 decibels . . . through double-paned windows!  How loud is 128 decibels? About as loud as a jet engine.  Plaintiff claims that all of this barking caused him “profound emotional distress.”

A frivolous lawsuit has no friend like a lazy defendant. But $500,000 for emotional distress from dog barking?  We’re no experts in Washington civil procedure, but like most states, its rules do call for a judicial inquiry to verify the damages in cases like this one. The rules provide:

When Amount Uncertain. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings as are deemed necessary or, when required by statute, shall have such matters resolved by a jury. Findings of fact and conclusions of law are required under this subsection.

Wash. Super. Ct. Civ. R. 55.

So it would appear that some judge looked at this case and determined that $500,000 was a plausible amount of damages.  That’s probably the real story here.  The defendant now faces an uphill battle in attempted to get the judgment vacated.

New Mexico Woman Sues Flask Maker For Placing Her Likeness On Flash

Imagine perusing a novelty store only to see your high school yearbook photo plastered on a flask along with the phrase: “I’m going to be the most popular girl in rehab.”  Apparently, that frightful experience actually happened to a New Mexico woman.  She didn’t find it very humorous, and thus, she is suing the novelty products maker over the flask that included her likeness.

According a complaint filed by Veronica Vigil federal court, defendant Anne Taintor, Inc. obtained and used her high school graduation picture from ethe 1970’s without her permission on flask with the aforementioned phrase emblazoned thereupon. It is not entirely clear how Anne Traitor obtained the picture (although according to news reports they do claim to have purchased the image).  Nevertheless, Ms. Vigil alleges that the New York company defamed her by linking her image to a product that makes light of substance abuse. According to the complaint, Ms. Vigil is “an active member of her church and does not consume alcohol or drugs.”

The flask is no longer available on the company’s website (  There is, however, a used one listed on for the bargain price of $229.00.

More Semantics In Half-Baked, “Store-Baked” Lawsuit

The field of “semantics law” is growing at a rapid pace.  We recently reported on two lawsuits revolving around the use of the term “handmade” with respect to bourbon and vodka.  Here’s another to add to the list.  Whole Foods and two other grocers (Wegman’s and Acme) in New Jersey have been hit with a lawsuit alleging deceptive use of the term “store-baked.”

So what heinous crime have these grocers committed? It’s nothing as dastardly as trying to pass day-old bagels as fresh. Rather, the lawsuit contends some of the bread sold as “store-baked” is being made off site and only being heated on the store’s premises.  Apparently, the Plaintiffs’ sensitive palates require that baked goods be made from scratch on the premises. The Plaintiffs contend that these grocers’ alleged evil deeds violate the New Jersey Consumer Protection Act, and in bringing the suit, they purport to represent a class of approximately 10,000 customers of each chain. Further, they seek damages of at least $100 per customer.  That’s a lot of dough.

Whole Foods declined to comment on the matter, but Wegman’s and Acme denied any deceptive practices. If these types of cases are allowed to move forward, expect a lot more Plaintiffs bringing cases that pivot on semantics.